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Essay: The UK’s non-strict separation of powers is a strength, not a weakness.

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  • The UK's non-strict separation of powers is a strength, not a weakness.
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The UK Constitution does not contain a strict separation of powers. But that is a strength, not a weakness:

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The separation of powers is a constitutional principle that divides governmental authority between three branches, each controlling a different aspect of government. The main purpose of this principle is to limit any one branch from exercising the core functions of another , in order to maintain liberties and prevent tyranny. It divides government into three branches: legislative (Parliament), executive (government and the crown) and judicial (judges in the courts). The extent to which this doctrine is implemented is dependent upon the needs of each jurisdiction, therefore it could be argued that the UK does not contain a strict separation of powers. In fact, the UK uses a system of checks and balances to prevent abuse of power, as there is no absolute doctrine of the separation of powers in the UK constitution. Thus, overlaps exist both in terms of the functions of the organs of the state and the personnel operating within them . In order to assess the strengths and weaknesses of the UK’s separation of powers policy, recent reforms such as the Constitutional Reform Act 2005, and the relationships between the different aspects of government must be scrutinized. In my opinion, the UK Constitution’s weak separation of powers is more of a weakness than it is a strength.

The main weakness of not having a strict separation of powers is that there is no clear distinction between the functions of each branch. Therefore, this leads to tension between the branches as illustrated in the case A v Secretary of State for Home Department [2004]. The case concerns the detention of international terrorists without charge, in which the Attorney General stated that “these were matters of a political character calling for an exercise of political and not judicial judgment” . However, this was rejected by the leading judge in the case, Lord Bingham, concluded that “the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal function of the modern democratic state” . This case clearly highlights an obdurate misinterpretation of the role of the judiciary by the executive, which would not have emerged if there was a strict separation of powers doctrine. The significance of this case is immense as the judiciary directly challenged the powers of the executive and made it clear that it is the function of the courts to resolve legal matters even through sensitive political affairs. Furthermore, another case that emphasized tensions between the legislative and the judiciary is the case of R v Secretary of State for the Home Department Ex p. Fire Brigades Union [1995]. This case concerns the Secretary of State using prerogative powers to introduce a new, non-statutory regime based on a sliding tariff scale and thus constituted a direct contravention of the will of Parliament given in the 1988 Act . While the case concerns a compensation scheme, it revealed there were issues between the relationship of the executive and Parliament, and of the courts’ role in regulating the behaviour of the executive by interpreting the will of Parliament as stated in legislation . Although the decision was split (3:2), the three judges sided against the Secretary of State and identified that this was a matter of separation of powers that lies in the British Constitution, re-enforcing the argument that the UK constitution’s separation of powers is a weakness.

In addition, another weakness of a non-strict separation of powers is that it might allow tyranny or abuse of power. This was recognized by Montesquieu in his book “The Spirit of Law”. Montesquieu stated that ‘there is no liberty, if the judicial power be not separated from the legislative and executive” otherwise leading to an arbitrary government . The role of the Lord Chancellor directly challenged this as he was head of the judiciary, a member of the cabinet, and a speaker for the House of Commons (legislative). This has been tackled through the Constitutional Reform Act 2005 which reduced the Lord Chancellors role to head of the Ministry of Justice as the Secretary of State for Justice , and the formation of the Supreme Court created a clearer separation of power between the legislature and the judiciary. This shows that prior to the Act the Lord Chancellor was involved in all three aspects of government, which promoted tyranny. Even though the Constitutional Reform Act formed a clear separation of powers in some respects, there is still more to be desired in creating an absolute doctrine of the separation of powers to completely avoid tyranny and safeguard liberties.

Contradictorily, The UK constitution’s non-strict separation of powers can be regarded as a strength. Firstly, it prevents administrative complications and promotes cooperation among the organs of government. This avoids deadlocks and allows for quicker decisions to be taken during times of crisis, unlike in strict separation of powers constitutions such as the US. The former Prime Minister, Gordon Brown, identified the efficiency of a mixed system: “He knows the deadlock that often happens with the American constitution when Congress, the Senate and the President cannot agree on what needs to be done…he will see that we were able to persuade Parliament to put our banking reforms through and were able to finance our banks so that we could rescue them…whereas it took the Americans weeks and months to get those provisions through their legislature as a result of the issues that arise from the separation of powers.” This ascertains the issue that a strict separation of powers creates confusion and is not practical during times of crisis. While a weaker separation of powers such as in the UK is more efficient as all aspects of government are more cooperative.

In conclusion, the fact that the UK constitution does not contain a strict separation of powers is much more of a weakness than a strength. Although it promotes cooperation between the branches and allows for quick decisions to be made, it is more prone to the abuse of power. The Constitutional Reform Act 2005 constituted a clearer separation of powers, but an absolute doctrine of separation of powers should be established to avoid confusion and the emergence of tyranny among the different aspects of government.

11.12.2018

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